Price v. Coblitz.

No question is made but that by agreement of the parties the lease was terminated as early as May 1, 1898.

On the part of the defendants it is claimed that it terminated by such agreement on March 1, 1898.

The testimony on this point is confing. The jury found for the defendants, and we are not prepared to say that they made a mistake in so finding.

Another question made in the case. is a claim on the part of the defendants, that on either the first or second day of March, 1898, the plaintiffs accepted three notes given to them by the defendant Colton in full payment of the rent which had accrued up to that time.

It is admitted by the plaintiffs that notes for the proper amount then due upon the lease were given to them by Colton at that time, but they say, and introduce evidence tending to show, that such notes were only given as collateral to the original indebtedness created by the lease. The evidence of the defendants tends to establish their claim in that regard.

The court charged the jury as requested by the plaintiffs on this proposition, as follows:

"The giving of a promissory note by a debtor for the amount of an existing indebtedness, is presumed not to be in payment of the debt, but as collateral thereto."

And again: "Unless the jury find from the evidence that the plaintiffs themselves, or through an agent duly authorized, expressly agreed to accept the notes of Mr. Colton offered in evidence of the actual payment of the rent accrued to March 1, 1898, the jury cannot treat them as payment of such rent."

These requests given to the jury certainly stated the law as favorably to the plaintiffs as they asked, or could have asked, and the jury found for the defendants on this proposition. We are not satisfied that the jury made any mistake in this regard.

As has already been said, there was a dispute between the parties as to whether, by their agreement, the lease was terminated on March 1, or on May 1, 1898.

Complaint is made of this language of the court used in its charge to the jury: "So that really the only thing you are to try is the fact whether or not these notes, as claimed by the defendant, were thus accepted." That is to say, accepted in payment of the pre-existing indebtedness for rent, or only as collateral to such pre-existing indebted

ness.

Taken alone, the language of the charge as quoted would be wrong, because there was another question to be tried by the jury, but taking the entire charge, we think the jury could not have been misled by this language. The court did submit to the jury the question of whether the plaintiffs had taken the premises off the hands of the defendants on the first of March, so as to release them from liability for rent after that date, and upon that question charged at the request of the plaintiffs, as follows:

"If the plaintiffs by their agent agreed to try to rent said store building to other parties and to release the defendant from said lease whenever the plaintiffs procured a permanent tenant for said premises, such release would not become operative until such permanent tenant was procured; and the renting of a part of said store room for transient purposes from day to day, for a week or ten days, or thereabouts, would

Cuyahoga Circuit Court.

not release the defendants, and such temporary occupant of such part of said room would not be a permanent tenant."

Surely this could not have been understood by the jury as meaning anything except as bearing upon the question of whether the defendants were released from rent which could have accrued after the first of March.

A question is made as to the ruling of the court upon a question of evidence. This question arises in this way: The defendant Colton was upon the witness stand in his own behalf, and had testified that one McIlrath had acted to some extent as the agent of the plaintiffs in the collection of rent, and then was asked this question: "Did you have any conversation with Mr. Mcllrath?" To which he answered, "I did."

Question. "How many times?" Answer. "Two or three times." "You may tell those conversations; tell what they were." Answer. "I spoke to Mr. McIlrath, stating that I contemplated moving out of the premises and, of course, I did not wish any afterclap of any kind, and he said that could be arranged all satisfactory. And I saw him on another occasion, and he then stated that he had not seen Price and Stewart, but that I could rest assured that there would be no trouble about that later on, regarding the matter of rent and unexpired lease."

The witness was permitted to answer these questions over the objections of the plaintiffs; and, after giving his last answer, a motion was made to take it from the jury, which was overruled. Proper exceptions were taken to the ruling of the court upon these questions.

The witness stated that the conversation with Mr. McIlrath occurred sometime during the month of February, undoubtedly meaning February, 1898.

We think the testimony was irrelevant and should have been excluded because not bearing upon any issue in the case, for the conversation, as related by the witness, fails to show that McIlrath assumed to release the defendant from the payment of rent. At the first of these conversations, McIlrath said that the matter of Colton's retiring from the premises could be arranged; he did not then assume to arrange it. In the next conversation he stated that he had not seen Price and Stewart, clearly conveying to Colton that they were the ones to actually determine whether he would be released; but McIlrath added that Colton might rest assured that there would be no trouble about it. This does not amount to any arrangement made by McIlrath for the plaintiffs to release Colton and, as already said, did not tend to establish the position taken by the defendants.

Though this was irrelevant, as it had no bearing on the case, we think it cannot be said to have prejudiced the rights of the plaintiff and would not justify the reversal of the judgment which is affirmed.

Shadle v. Illuminating Co.

MASTER AND SERVANT EVIDENCE.

[Cuyahoga Circuit Court, March 22, 1901.]

Caldwell, Hale and Marvin, JJ.

HOMER E. SHADLE V. CLEVELAND ELECTRIC ILLUMINATING CO. 1. DANGERS OF WORK IN BUILDING OF THIRD Party-Assumed.

There is a difference in the obligation of the emyloyer, in respect to furnishing a suitable place for the employe to work, where the work is done upon the premises of a third party, instead of at the shop or factory of the employer. Therefore an experienced workman, acting within the scope of his employment and without specific instructions as to the manner of performing his work in putting electric light wires in the shaft of a building not controlled by his employer, assumes the dangers incident to such work, by reason of defects in the shaft or its machinery, of which he had knowledge equal to that of the employer.

2. EXCEPTIONS FAILING TO SHOW Evidence Sought.

Judgment will not be reversed for sustaining an objection to a question asked in the direct examination of a witness, where the exception does not show what testimony was expected of the witness, and particularly when the answer if given could not have been competent or of any benefit to the party asking it.

HEARD ON Error.

Kerruish, Chapman & Kerruish, for plaintiff in error.

Hoyt, Dustin & Kelley, and Squire, Sanders & Dempsey, for defendants in error, cited:

Distinction between contributory negligence and assumption of risk: Tuttle v. Railway Co., 7 Sup. Ct. Rep., 1166 [122 U. S., 189, 195]; Farwell v. Railroad Co., 4 Metc., 49, 56; Miner v. Railway Co., 153 Mass., 398 [26 N. E. Rep., 994]; Pierce v. Clavin, 82 Fed., 550, 553; Foley v. Lighting Co., 54 N. J. L., 411 [24 Atl. Rep., 487]; W. & G. Railway Co. v. McDade, 10 Sup. Ct. Rep., 1044 [135 U. S., 554]; Appeal v. Railway Co., 19 N. E. Rep., 93; Swanson v. Lafayette, 134 Ind., 625 [33 N. E. Rep., 1033].

Knowledge of dangers: Pratt v. Prouty, 153 Mass., 333 [26 N. E. Rep., 1002]; Big Stone Co., v. Wolf, 138 Ind., 496 [38 N. E. Rep., 52]; Ames v. Railway Co., 135 Ind., 367, [35 N. E. Rep., 117]; Olson v. McMullen, 34 Minn., 94 [24 N. W. Rep., 318]; Coal and Car Co. v. Norman, 49 Ohio St., 598 [32 N. E. Rep., 857]; Coal Co. v. Estievenard, 53 Ohio St., 43 [40 N. E. Rep., 725]; Krause v. Morgan, 53 Ohio St., 26 [40 N. E. Rep., 886]; Railway Co. v. Leech, 41 Ohio St., 388:

No negligence presumed nor approved against defendant: Huff v. Austin, 46 Ohio St., 386 [21 N. E. Rep., 864, 15 Am. St., Rep., 613]; Dixon v. Telegraph Co., 68 Fed., 630, 633; Ib., 71 Fed., 143; Trask v. Railway Co., 156 Mass., 293, 303 [31 N. E. Rep., 6]; Hughes v. Gas Light Co., 86 Mass., 395 [47 N. E. Rep., 125].

MARVIN, J.

This is a proceeding in error to the court of common pleas of Cuyahoga county. The plaintiff here was the plaintiff below. The defendant here was a defendant below, as was also the Cleveland Building Company. The last named defendant, however was dismissed out of the

Cuyahoga Circuit Court.

case so that the trial was between the plaintiff Shadle and the defendant in error.

The cause of action was for injuries received by the plaintiff while in the employ of the defendant, on July 10, 1895, which injuries, he says, were due wholly to the negligence of the defendant and, in no wise attributable to any negligence on his own part.

At the close of the plaintiff's evidence the court, on motion of the defendant, instructed the jury to return a verdict in favor of the defendant, which was done. A motion for a new trial was filed by the plaintiff, and overruled. Exceptions were taken to the action of the court in directing a verdict for the defendant and to its overruling the motion for a new trial. Various exceptions were taken by the plaintiff to the ruling of the court upon the introduction of evidence during the progress of the trial, and it is claimed on the part of the plaintiff that such error was committed by the court, as requires a reversal of the judgment, which was entered upon the verdict.

The facts are that the plaintiff was an experienced workman in the matter of putting in and connecting electric wires in buildings and other places where such wires are used. The plaintiff was sent by the defendant to a business block in the city of Cleveland, known as the Garfield building, for the purpose of stringing temporary wires in such building for lighting the same with electricity. The wires were strung in a shaft or opening which was adjoining the elevator shaft of the building. This shaft extended from the top to the bottom of the building which was ten stories (about 150 feet) in height. The necessity for this work arose from the fact that a day or two before plaintiff's injury a fire had occurred in the building and destroyed the wires which had theretofore supplied the building with electricity. This shaft was about twelve feet long by two and one-half feet wide, and in this shaft the counterweights, which were heavy pieces of iron, ascended and descended in opposition to the elevators which were in an adjoining shaft. These counter-weights ran in grooves against the wall of the shaft and were substantially noiseless in their operations. There was a wall of separation between the elevator shaft and the shaft in which the plaintiff was working. At each floor of the building was a toilet room from which a door opened into this shaft; there was no other means of entering the shaft from any one of the floors except by means of passing through the toilet room and the door leading from such room into the shaft.

On the fourth floor and on the seventh floor these toilet rooms were exclusively for the use of ladies.

At the time of the injury the plaintiff was working at the seventh floor. He had asked his foreman if he might not be permitted to enter the shaft through the toilet room door, and was told that the managers of the building would not permit it. The door was locked, and he reached the place where he was at work by passing through the door of the toilet room on the eighth floor and climbing down some wires which had been suspended in the shaft before that time as far as the seventh floor. Across the shaft at this seventh floor was a water-pipe of iron, about an inch in diameter, and the plaintiff supported himself while engaged in his work, on this water-pipe. At the time of the injury he was sitting upon it. The only light which was in this shaft was obtained by means of an outside window at each floor. These windows were not large and, by reason of the fire already mentioned, were somewhat smoky, and the light was faint, so faint that the plaintiff says one could

Shadle v. Illuminating Co.

not read in there at all. On one side of the shaft was a large iron pipe, spoken of as a "pressure pipe," extending the entire length of the shaft from top to bottom, and that was held against the wall by iron bands about one-half inch thick, the pipe itself being about twelve inches in diameter; one of these bands was on a level with the seventh floor.

A fellow workman of the plaintiff, who was at the eighth floor, called out to him that he was about to drop something and that he (the plaintiff) must look out or he might be hurt. Thereupon, the plaintiff says in his testimony: "I told him to wait until I could get out of the road. I was sitting on the pipe, and I raised my foot and started to put my other foot on this iron band and just as I put my foot on there, I judge the band dropped, and I went up and got caught in the weight. * * * I put one foot on the pipe, and the other on this band. The pipe was right back of me like that (indicating). The first thing I knew, I went against the wall, and the weight came up and caught me and carried me up."

The fact is that, as the plaintiff put his foot against this iron band which surrounded the "pressure pipe," either from the moving of the band or the slipping of his foot, he was caught by one of the counterweights already mentioned and which was then going up, and he was dragged up to the tenth story and lost his leg.

The negligence charged against the defendant is that it " was grossly negligent and careless in the premises in this, that having full knowledge and information of all the failures, negligences, refusals, perils, difficulties and risks" surrounding the shaft and its appliances and the manner of its construction, "through its superintendent directed, and commanded and in so commanding beguiled and compelled plaintiff for the purposes and in the manner aforesaid, into the above described contrivance of danger in the manner aforesaid."

The petition avers that the place where the paintiff was put to work, was a very dangerous place to work by reason of the darkness and want of any proper place for his support, and the running of these counterweights up and down the side of the shaft.

The evidence shows that on the day preceding the plaintiff's injury, he was in this shaft for a considerable time engaged in this same kind of work; he was at this seventh floor but, he says only a minute or two.

It seems clear that he had all the means of knowing what the dangers incident to this work were, as completely as the defendant had means of knowing. He knew that the defendant had made no careful inspection of the surroundings here, nor had he made any careful inspection; he received no specific instructions from his foreman as to the manner in which the work should be done. He was told by the foreman, Mr. Tripp, to do this work, and was also told by him that it would be impossible to have the door of the toilet room open for him to get into the shaft.

So far as the matter of light is concerned, he knew all about that, for he had been there the day before. This is equally true as to the means for supporting himself while in the shaft, and as to the working up and down of the counter-weights. Indeed, there seems to have been nothing particularly dangerous about his position or surroundings of which he had not full knowledge, except, possibly, the security of the band surrounding the pressure pipe, this half-inch band on which he says he placed his foot, when it fell.